Minnesota Should Enforce the Constitutional Right to Literacy

       (In today's post, JvonKorff on Education takes a break from a series on Cruz-Guzman to discuss our failure in Minnesota to enforce the constitutional and statutory right to literacy.   Cruz-Guzman is one of numerous integration suits that have dominated Minnesota's education litigation landscape.   This post interrupts to remind that the Education Clause is primarily about empowering each child through education, and that learning to read is the gateway to education).   

Across the country, civil rights advocates have increasingly begun to demand that states and individual districts recognize students constitutional right to become literate proficient readers.  

For example, in in July, 2021, Berkeley Unified School District agreed to settle a class-action lawsuit claiming that district failed to identify students with reading disorders and provide necessary accommodations for them. Under the terms of the proposed settlement agreement, Berkeley schools agreed to  offer universal screening for reading disorders and implement new programs for teaching reading. The changes will be implemented over the next three years.

Nearby, the Oakland NAACP  has made literacy its main educational focus. As part of their campaign to require the Oakland School District to apply the reading science based recommendation of the National Reading Panel, the Oakland NAACP explains:

Our students are not receiving the free and appropriate education they need to successfully navigate college, careers, societal institutions, or opportunities to be of service to the Oakland community. Our Black, Latino and Pacific Islander students in the Oakland Unified School District ("OUSD") are four times more likely to be reading multiple years below grade level than our white students . Without the ability to read, they are denied learning and denied the opportunity to identify, cultivate, and leverage their talents in whichever way they choose. The failure of OUSD to educate our students has resulted in reduced earning potential, racialized health disparities and communities vulnerable to gentrification.

Across the country, Fairfax County Virginia NAACP issued a letter demanding that their school district transform its literacy program.  They wrote: 

"Literacy is a human right, without which there is no freedom, and there is no justice.  …In a year where all students have suffered, the learning loss for Black and Hispanic children has been catastrophic. These losses are particularly concerning when viewed through the lens of the long-standing minority student achievement gap. This disparity in learning begins the moment children enter school and are not taught effectively to read. Sadly, the methodology currently used in Fairfax County Public Schools (FCPS) to teach reading has failed over many decades

Tired of the failure of the Detroit school system to teach its students to read, advocates for Detroit children launched a first-in-the-nation effort to use the federal courts to establish a federal constitutional right to literacy education.   In 2020, the 6th Circuit Court of Appeals recognized that right stating:

The Fourteenth Amendment's Due Process Clause provides students with a fundamental right to a basic minimum education, meaning one that provides access to literacy; history of public education in country reveals longstanding practice of free state-sponsored schools, ubiquitous at time of Fourteenth Amendment's adoption, and role of basic literacy education within broader constitutional framework suggests access to literacy is essential to exercise of other fundamental rights and concept of ordered liberty.

 Before further appeals could be completed, the State of Michigan settled with the plaintiffs. 

Minnesota's education litigation landscape has in contrast been characterized by a failure to go right to the heart of what counts for our kids:  their right to learn, at the core of which is the ability to read proficiently.   Since the 1970's there have been multiple litigation alleging various violations of the constitutional right to education for Minnesota students.  However, none of the metro-area litigations have sought to enforce the right to a quality basic education, and none has touched on the very most basic right to education, the right to learn to read proficiently.

There is no legitimate defense to Minnesota's failure to teach its students to read.   Basically, Minnesota is doing a great job with the kids who learn to read effortlessly; but it is abandoning the others.  Only about 5% of all children lack the capacity to learn to read, and often those students are excused from standardized reading tests that would be reported on the Minnesota Report Card.     

    The table below displays the Minnesota MCA reading proficiency scores for all tested students in three districts on the left three columns. The right two columns

  

report the proficiency percentages for non-English-language -learner black students in Minneapolis and St. Paul.   Our urban core cities are failing to teach somewhere between 70 and 80 percent of black students whose first language is English.   Our literacy issues impact all students however:  Statewide, about 40% of all white students do not score proficient on Minnesota's MCA reading tests.  (And, one cannot find any indication that on average, Minnesota charters are doing any better).    We  are simply not meeting our responsibility to teach all students who can learn how to read to read proficient.   

Why are we failing so many students in public education?  

• The abject failure of leadership at all levels of Minnesota from Governors on down to school boards, department of education, superintendents and school leadership to reform the teaching of reading by implementing what is known to work for the students are system is now failing.   
• The mistaken belief that everything and anything other than what schools do is to blame for our failure and the corresponding refusal to change.
  
• The failure to deploy and require changes in curriculum that is not working, changes in basal and supplemental reading programs that are not working, changes in instructional practices that are not working, simply because they work just fine for the 60% of students who learn to read, no matter what techniques we use
• The passive and sometimes aggressive resistance to identifying students with the characteristics of dyslexia 
• The failure of the attorney general, of the department of education, of the Governor, of the legal community, and of the NGO community to use our imagination to enforce the constitutional right to literacy.  School choice hasn't done the job; charter schools haven't done the job; integration suits haven't done the job.   Maybe its time to fix the literacy problem in Minnesota by, well, fixing the literacy problem directly.  
  

Yes,  there a constitutional right to literacy!   We'll discuss the legal basis for that in a subsequent post.   Simply put, the Minnesota Supreme Court in the Cruz-Guzman and Skeen cases have founded the constitutional right to an adequate education on the legislative requirements applicable to all districts: the right to an adequate education that meets all state standards, and many of those standards demand that school districts teach students to read.    In our next post, we'll return to discuss the Cruz-Guzman litigation, but let us not keep our eye off the prize:  the ultimate prize, the ultimate driving purpose of the education clause was to provide every student with the freedom and power that comes from an education adequate to prepare them for citizenship and for equal participation in economic society.  Once finished with the Cruz-Guzman case, we'll return to discuss the legal basis for the constitutional right to literacy. 

 

 

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